Chief Vincent Olie & Ors V. Chief Paul Otuyah & Ors (2007)

LawGlobal-Hub Lead Judgment Report

STANLEY SHENKO ALAGOA J.C.A

At the High Court of Justice Kwale in the Kwale Judicial Division of Delta State of Nigeria the 1st, 2nd and 3rd Respondents as Plaintiffs took out a writ of summons against the 1st, 2nd and 3rd Appellants and the 4th Respondents as Defendants jointly and/or severally for the following reliefs which are also contained in paragraph 29 of their statement of claim dated the 15th day of January 1988-

1. A Declaration that the 1st to 3rd Defendants consistently violate the fundamental terms of the consent Judgment in the consolidated Suit Nos. UHC/43/71, UHC/50/71 and UHC/70/71.
2. A Declaration that the 1st to 3rd Defendants while consistently obtaining benefits under the consent judgment in the consolidated Suits UHC/70/71 have refused declined and/or neglected to perform their legal obligations to Plaintiffs in relation to the burdens therein contained.
3. A Declaration that the 1st to 3rd Defendants did not ever intend to perform their obligations to Plaintiffs under the said consent judgment in Suit Nos. UHC/43/71, UHC/50/71 and UHC/70/71.
4. A Declaration that Plaintiffs were induced to subscribe to the consent judgment in Suits Nos. UHC/43/71, UHC/50/71 and UHC/70/71 by Defendants’ misrepresentation/fraud that 1st to 3rd Defendants would honour their legal obligations to Plaintiffs under the said consent judgment.
5. An Order setting aside the said consent judgment in consolidated Suits Nos. UHC/43/71, UHC/50/71 and UHC70/71 dated 19th day of October 1992.

The 1st 2nd and 3rd Appellants as Defendants filed a joint statement of defence dated 29th December 1988 while the Nigerian Agip Oil Company as 4th Defendant filed a separate statement of defence dated 27th June 1988.

Pleadings were duly exchanged as between the parties and by a Motion on Notice dated 28th May 1989 (Pages 45-49 of the Records of Appeal) the 1st – 3rd Appellants as 1st – 3rd Respondents prayed the Hon. trial court for the following orders:

(i) Setting down for hearing and determination the points of law raised in paragraph 32(a), (c) and (d) of the Defendants/Applicants’ statement of defence filed in the above- mentioned Suit No HCK/13/87 by the 1st, 2nd and 3rd defendants/applicants namely:

32(a) Estoppel per rem judicatam on the ground that the issues raised in this action and the reliefs therefrom are the same or substantially the same issues which were raised, canvassed and dismissed in suit nos. HCK/26/76, CA/148/84 and HCK/20/81.

The present action is therefore only a surreptitious (sic) way of reawakening a settled suit between the same parties and on the same facts and before the same court.

(c) Jurisdiction: Since the issues raised in the Suit are the same or substantially the same as the issues canvassed in the above mentioned suits this Honourable court has no jurisdiction to entertain the present suit.

(d) This action is an abuse of the process of court in view of the reasons given in (c) above.

(ii) Dismissing or striking out the above mentioned Suit No. HCK/13/87 on the grounds set out above AND for such further order or orders as the Honourable court may deem fit to make in the circumstances.

This application praying the court to dismiss or strike out Suit NO. HCK/13/87 was heard and in a ruling dated 30th May 1996 was dismissed with N600 costs in favour of the plaintiffs/Respondents. (See pages 73-97 of the Records of Appeal).

Dissatisfied with this ruling of the trial court dated 30th May 1996, the 1st – 3rd Defendants/Applications at the lower court have appealed to the Court of Appeal with leave granted on 13th June 1996 against the said Ruling as 1st – 3rd Appellants upon seven Grounds of appeal contained in the Notice of Appeal dated 13th June 1996 which can be found on pages 103-105 of the Records of Appeal. The said Notice and Grounds of Appeal with attendant particulars are reproduced hereunder –

IN THE COURT OF APPEAL CIVIL FORM 3 NOTICE OF APPEAL

(Order 3 Rule 2)